It is not unusual to find your neighbour’s tree overhanging your premises and creating a nuisance. In most cases, having your neighbour’s tree trespass into your territory is never all that fun. In this write-up, we shall look at how you can deal with your neighbour’s tree’s nuisance.
How Does the Law View this situation?
Under the law this is referred to as a private nuisance, which means that your neighbour’s acts or omission interferes in a substantial way with the use and enjoyment of your property.
In the instance cited above, we can come to terms with the fact that your neighbour – like every other occupier of land – has a fundamental right to put his land to any lawful use.
Private nuisance therefore usually borders around two conflicting rights;
The right of your neighbour to use his land as he so wishes on the one hand; and your own right to be protected from interference with the enjoyment of your land on the other.
What is the Nature of the (Tree) Nuisance?
Private nuisance can fall into any of these two categories.
– Where the nuisance causes physical damage to your property. An example is where one of the gigantic branches from the tree falls on your roof or fence and destroys it.
– Where the nuisance prevents you from using or enjoying your land. A likely instance is where your neighbour’s tree harbours noisy birds that ensure you do not sleep until they have hibernated.
Another instance could be where an overhanging branch from the tree creates an avoidable shade over your vegetable garden preventing rain and shine from giving your tender veggies a treat.
What steps can you take?
The best approach, in my opinion is The Gentleman Approach, which in effect is an Alternative Dispute Resolution (ADR). Find a convenient time in your schedule to discuss issues with your neighbour. If the meeting ends well, the annoying tree branches or roots or the tree itself may be fell to curb the nuisance. This way, litigation will only be a last resort and the rigours of court proceedings will be bypassed.
If however the round-table call for truce fails, here are some steps to take:
The law of nuisance permits you to remove the nuisance. This is known as the Remedy of Abatement which permits you to cut or trim any overhanging branch or offending root.
However, it is worthy to ensure that, in the process of cutting the branch or root you do not to enter your neighbour’s land as otherwise you may be liable for trespass.
Taking the Case to Court
If your neighbour is one difficult fellow, the best decision may be to take the case to court. Should you decide on threading this path, note the factors that the court will consider in deciding the case.
1. The court will consider the magnitude of the nuisance and how unreasonable it is.
2. The nature of the neighbourhood will also be considered, so that a man living in an area earmarked as a green belt will not succeed in a claim of a tree branch interfering with the enjoyment of his land.
The nature of the neighbourhood will however be most irrelevant where the nuisance complained of is that of damage to property.
3. Other factors like the duration or continuance of the nuisance and the impact of the nuisance will be considered.
Note that taking the matter to court may be quite expensive and time-consuming. The Gentleman Approach is usually the best magic.
Good luck dealing with your neighbour and his tree!
Leave your opinion in the comment section.
Damilola Akinsanya is a fresh graduate of the Faculty of Law, University of Ibadan, Nigeria. He is an Environmental Law enthusiast and a former President of Clean Earth Society, University of Ibadan. He is the founder of The Triads NG- a fast-rising online hub of refined works of art. When he is not writing, he is either spending time with children or reading about Africa. He is an unrepentant Arsenal FC fan. You can follow him on @damzyofficiall on Instagram & Twitter.